Cheryl Rogers and Don Rogers, Appellants v. City of Austin and Delta Air Lines, Inc., Appellees (2011)

M E M O R A N D U M O P I N I O N

Appellants Cheryl Rogers and Don Rogers appeal the trial court's order granting summary judgment for appellee Delta Air Lines, Inc. Appellants have filed a motion to abate their appeal with this Court.   They state that the order is not a final appealable order because it was not severed from claims for contribution that exist between Delta and appellee the City of Austin.   See Teer v. Duddlesten, 664 S.W.2d 702, 703–04 (Tex.1984) (without severance, summary judgment which does not dispose of all parties and issues is interlocutory and not appealable).   Appellants also certify that appellees do not oppose their motion to abate.

Texas Rule of Appellate Procedure 27.2 provides that an appellate court may permit a party to cure a prematurely filed appeal by allowing “an appealed order that is not final to be modified so as to be made final and may allow the modified order and all proceedings relating to it to be included in a supplemental record.”  Tex.R.App. P. 27.2.   We, therefore, grant appellants' motion to abate this appeal to give them 60 days after the date of this order to take action to cure the jurisdictional defect and to pay for and request a supplemental clerk's record containing a signed order of severance or an order otherwise disposing of remaining claims.   Failure to comply with this order will result in dismissal of this appeal for want of jurisdiction.   See Tex.R.App. P. 42.3(a);  Iacono v. Lyons, 6 S.W.3d 715, 717 (Tex.App.—Houston [1st Dist.] 1999, order).

Abated

Melissa Goodwin, Justice